Matter of Jenkins v Kings County Dist. Attorney's Off.

[*1] Matter of Jenkins v Kings County Dist. Attorney's Off. 2013 NY Slip Op 51544(U) Decided on September 23, 2013 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2013
Supreme Court, Kings County

In the Matter of the Application of Kevin Jenkins, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

The Kings County District Attorney's Office, , Respondent.



8348/13



Petitioner

Kevin Jenkins, pro se

Stormville NY

Respondent

Morgan J Dennehy, ADA

Office of Charles Hynes

Brooklyn NY

Arthur M. Schack, J.

Pro se petitioner KEVIN JENKINS (JENKINS), in this CPLR Article 78 proceeding, by order to show cause, seeks to direct respondent THE KINGS COUNTY DISTRICT ATTORNEY'S OFFICE (DA) to disclose certain records requested by him in a Freedom of Information Law (FOIL), Public Officers Law Article 6, §§ 84 - 90 request or to submit the requested records to the Court for an in camera review to determine if they are exempt from disclosure, pursuant to Public Officers Law § 87 (2) (f). For the reasons to follow the instant petition is denied as untimely. Further, even if the petition was timely, disclosure of the records in question "could endanger the life or safety of any person," pursuant to Public Officers Law § 87 (2) (f).

Background

Petitioner JENKINS, on March 3, 1992, fired a MAC-10 machine pistol at

a group of men on a Brooklyn street corner and the bullets hit Mark Carroll (Carroll), Julius Farmer, Darron Morris (Morris) and Mervin Bryant. Carroll died of his injuries. Petitioner JENKINS was convicted at a jury trial of murder in the second degree and sentenced to a prison term of 25 years to life. He is now incarcerated at Green

Haven Correctional Facility in Stormville, New York.

Petitioner JENKINS, by a letter dated April 18, 2012 [exhibit A of petition]

addressed to Respondent DA's FOIL Records Access Officer (RAO), made a FOIL request, demanding that respondent DA provides him with certain records that had been prepared in connection with his prosecution under Kings County Indictment Number 9727/97. Specifically, petitioner JENKINS requested a copy of all documents: (1) pertaining to Morris' production at his trial (i.e., order to produce, securing order, affidavits, etc.); (2) reflecting the movement of Morris while he was in respondent's custody; (3) reflecting the costs incurred during Morris' stay at the Brooklyn Marriott Hotel while Morris was waiting to testify at petitioner's trial; and, (4) reflecting the cost for Morris' flight to New York and his subsequent return flight to Texas.

John Peters (Peters), a FOIL RAO for respondent DA, by a letter dated October 24, 2012 [exhibit B of petition], responded to petitioner's request for these records, pursuant to FOIL. RAO Peters advised petitioner JENKINS that he had located six pages of documents. One of these documents was a meal money expense voucher and the other five pages were a material witness order with an affidavit. RAO Peters explained that these records satisfied, in whole, petitioner's first request (i.e., item 1) for documents pertaining to Morris' production at petitioner's criminal trial (i.e., order to produce, securing order, affidavits, etc.) and satisfied, in part, petitioner's third request for all documents reflecting the costs incurred during Morris' stay at the Marriott Hotel while he was waiting to testify at petitioner's criminal trial. The RAO denied petitioner JENKINS' remaining requests, pursuant to Public Officers Law § 87 (2) (f), because disclosure of these records "could endanger the life or safety" of a person. RAO Peters pointed out that a possibility of such endangerment existed because the records requested by petitioner JENKINS concerned travel, lodging, and protective custody of a witness and could not only pose a risk of harm to Morris, the individual to whom such documents relate, but might also compromise and/or impair the effectiveness of respondent DA's procedures and operations for [*2]protecting witnesses in criminal prosecutions.

Petitioner JENKINS appealed the partial denial of his FOIL request, by a letter dated November 16, 2012 addressed to Assistant District Attorney (ADA) Morgan J. Dennehy (Dennehy), respondent's FOIL Appeals Officer [exhibit C of petition]. Petitioner, in his appeal to ADA Dennehy, claimed that the RAO Peter's denial of item 2, part of item 3 and item 4 was unjustifiable because it was "premised entirely on speculation."

ADA Dennehy, by a letter dated November 26, 2012 [exhibit D of petition], denied petitioner's appeal and upheld RAO Peter's decision. Dennehy, in this letter, noted that an agency relying upon Public Officers Law § 87 (2) (f) is not required to prove that a danger to a person's life or safety would occur if the record is disclosed, but, rather, there need only be a possibility that such disclosure would endanger the lives or safety of individuals. Further, Dennehy noted that Morris had been shot in the back during the underlying incident and had relocated from Kings County after being threatened prior to trial. He determined that, as RAO Peters found, there was a possibility of a risk of harm to Morris and a risk of compromising or impairing the effectiveness of respondent DA's procedures and operations for protecting witnesses in criminal prosecutions. Dennehy found that since the RAO had demonstrated that such a possibility exists, petitioner's assertion that the RAO engaged in speculation in this regard was misplaced. In addition, since petitioner JENKINS, in his November 16, 2012-letter, requested certification that a diligent search for the requested records was made, Dennehy directed the RAO to certify, in accordance with Public Officers Law § 89 (3), that after a careful and diligent search, no additional records responsive to his FOIL request were located within the relevant files of respondent DA's office beyond those addressed in the response to that request. Such certification was provided by the RAO on November 26, 2012 [exhibit D of petition].

Petitioner JENKINS, on May 3, 2013, filed an inmate reduced filing fee application, pursuant to CPLR § 1101 (f), an affidavit in support of this application, dated April 10, 2013, and an order to show cause and petition, both dated March 21, 2013. Respondent DA submitted an affirmation in opposition to the instant petition.

Discussion

Petitioner JENKINS, in support of his petition, asserts that respondent DA's partial

disclosure of documents in response to his FOIL request was improper and respondent DA should have disclosed the remaining documents which respondent DA claims are exempt from disclosure. Petitioner JENKINS argues that the fact that he shot Morris should not preclude him from requesting records about him. He claims that Morris had already relocated to Texas four years before his trial and Morris' relocation was not the result of any threats made by him. Moreover, petitioner JENKINS argues that it was more likely that Morris relocated due to an outstanding warrant against him, rather than any alleged threats made by petitioner JENKINS.

In addition, petitioner JENKINS asserts that respondent DA's claim that disclosure of the documents sought would pose a risk of harm to Morris and compromise and impairs the effectiveness of its procedures and operations for protecting witnesses in criminal prosecutions is purely speculative. Moreover, he claims that these types of records could be redacted and the Court should examine the material in camera to ascertain whether the documents are actually covered by the Public Officers Law § 87 (2) (f) exemption.

Respondent DA, in opposition to the instant petition, contends that the petition must be [*3]dismissed because it is untimely. CPLR § 217 (1) provides a four-month Statute of Limitations for CPLR Article 78 proceedings, "after the determination to be reviewed becomes final and binding upon the petitioner." Thus, the date of the letter of denial on appeal of a FOIL request commences the Statute of Limitations period of four months to bring an Article 78 proceeding. (See Matter of Andrade v New York City Police Dept., 106 AD3d 520, 521 [1d Dept 2013]; Matter of Kelly v New York City Police Dept., 286 AD2d 581, 581 [1d Dept 2001]; Matter of Swinton v Record Access Officers for City of NY Police Dept., 198 AD2d 165, 165 [1d Dept 1993]; Matter of Laureano v Grimes, 179 AD2d 602, 603 [1d Dept 1992]; Matter of Jones v District Attorney's Off. of the County of NY, 33 Misc 3d 462, 465 [Sup Ct, NY County 2011]). In the instant proceeding, November 26, 2012, the date of Dennehy's letter of denial of petitioner JENKINS's FOIL request appeal, was the final determination by respondent DA with respect to petitioner's FOIL request. Therefore, petitioner had until March 26, 2013, four months from November 26, 2012, to file the instant CPLR Article 78 petition. While the petition is dated March 21, 2013, the Kings County Clerk's records disclose that the instant petition and order to show cause were not filed with the Clerk of the Court until May 3, 2013, which was the day on which the clerk entered the petition and issued an index number. (See CPLR § 304 [a], § 306-a [a], § 1101 [f], Rule 2102 [a]; Matter of Grant v Senkowski, 95 NY2d 605, 610 [2001]; Baez v Brown, 98 AD3d 609 [2d Dept 2012]). Thus, the instant petition is time-barred by the four-month Statute of Limitations, pursuant to CPLR § 217 (1), and must be dismissed.

Further, even if the instant petition was timely, based upon the merits of the proceeding the Court finds that respondent's denial of petitioner's administrative FOIL appeal was proper. While under FOIL government records are presumptively entitled to inspection, where they are subject to a statutory exemption such records need not be disclosed. (Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]; Matter of Gould v New York City Police Dept. , 89 NY2d 267, 274-275 [1996]). When an agency claims that a record is exempt from disclosure it has the burden of demonstrating that "the requested material falls squarely within [one of the statutory] exemption[s] by articulating a particularized and specific justification for denying access." (Matter of Carnevale v City of Albany, 68 AD3d 1290, 1292 [3d Dept 2009]). (See Matter of Fappiano, 95 NY2d at 746; Matter of Gould, 89 NY2d at 275; Matter of Mazzone v New York State Dept. of Transp., 95 AD3d 1423, 1425 [3d Dept 2012]; Matter of Bass Pro, Inc. v Megna, 69 AD3d 1040, 1041 [3d Dept 2010]).

Respondent DA asserts that it withheld eight pages of the documents requested by

petitioner because disclosure could endanger the life or safety of a person. Public Officers Law § 87 (2) (f) permits respondent DA to "deny access to records or portions thereof that . . . if disclosed could endanger the life or safety of any person." Contrary to petitioner JENKINS's assertions in his petition, respondent DA is not required "to prove that a danger to a person's life or safety will occur if the information is made public." (Matter of Stronza v Hoke, 148 AD2d 900, 901 [3d Dept 1989], appeal denied 74 NY2d 611 [1989]). (See Matter of Nalo v Sullivan, 125 AD2d 311, 312 [2d Dept 1986], appeal denied 69 NY2d 612 [1987]). There also need not be any specific showing by respondent that petitioner, who is presently incarcerated, has threatened or intimidated the witness in his criminal case. (Matter of Johnson v New York City Police Dept., 257 AD2d 343, 348 [1d Dept 1999]). "Rather, there need only be a possibility that such information would endanger the lives or safety of individuals" to invoke the exemption [*4]under Public Officer Law § 87 (2) (f). (Matter of Stronza, 148 AD2d at 901). (See also Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996]; Matter of Connolly v New York Guard, 175 AD2d 372, 373 [3d Dept 1991]).

Petitioner JENKINS, in this proceeding, seeks to obtain documents reflecting respondent DA's movement of Morris while he was in its custody waiting to testify at petitioner's murder trial and documents showing the costs related to Morris' stay during this time period. Such documents would reflect where respondent DA kept Morris during this time period and would necessarily reveal where respondent keeps its witnesses while waiting to testify in a criminal trial. Petitioner also seeks documents reflecting the costs for Morris' flight to New York and return to Texas. Such documents could indicate Morris' present whereabouts. Petitioner does not assert the reason that he seeks this information, but it does not appear that such information would contain any exculpatory information. However, the documents sought, by their very nature, could provide information which potentially might result in retaliatory action against Morris and would reveal information about the procedures which respondent DA employs when its witnesses are waiting to testify at a criminal trial. Therefore, as respondent DA contends, this information could potentially endanger the life and safety of witnesses or have a chilling effect on future witness cooperation. (Matter of Hynes v Fischer, 101 AD3d 1188, 1190 [1d Dept 2012]; Matter of Johnson, 257 AD2d at 349). Thus, the Court finds that in the instant proceeding the standard for exemption from FOIL disclosure, pursuant to Public Officers Law § 87 (2) (f), has been met. Consequently, the disclosure of the information withheld by respondent DA was properly denied. (Matter of Hynes, 101 AD3d at 1190; Matter of Whitfield v Bailey, 80 AD3d 417, 419 [1d Dept 2011]; Matter of Carty v New York State Div. of Parole, 277 AD2d 633, 633 [3d Dept 2000]).

Alternatively, Petitioner JENKINS seeks an in camera inspection by the Court of the documents withheld by respondent DA. Respondent DA notes that these documents are available to the Court for in camera inspection. However, the need for such an inspection is moot because the instant petition is time-barred and would be denied if the merits of the instant proceeding were reached.

Conclusion

Accordingly, it isORDERED, that the instant CPLR Article 78 petition and order to show cause of petitioner KEVIN JENKINS are denied and the instant CPLR Article 78 proceeding is dismissed.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACKJ. S. C.